Sunday, October 08, 2006

still here

Friday, March 04, 2005

Torture in Indiana Prisons

Human Rights Watch Condemns Prolonged Confinement in Excessively Harsh Conditions in Indiana's Super-maximum Security Facilities

(New York, October 22, 1997)--The State of Indiana inflicts cruel, inhuman or degrading treatment on prisoners subjected to prolonged confinement in the excessively harsh conditions of the Maximum Control Facility (MCF) and the Secured Housing Unit of the Wabash Valley Correctional Facility (SHU) . In Cold Storage: Super-maximum Security Confinement in Indiana, released today, Human Rights Watch concludes that confining mentally ill prisoners at the MCF and the SHU can cause such great suffering as to constitute torture under international human rights law.

The Indiana Department of Corrections has the difficult job of securely housing disruptive or dangerous prisoners. But throwing them for years into the shocking conditions at the MCF and the SHU is beyond the pale," states Jamie Fellner, associate counsel of Human Rights Watch.

Prisoners are sent to the MCF and the SHU after breaking rules at other prisons. More than half of the prisoners at the SHU are severely mentally ill and for these prisoners, conditions of confinement can be unbearable. Confined for twenty-two to twenty-three hours a day in small single cells, all prisoners at Indiana's super-maximum security prisons face extraordinary isolation, complete idleness, limited environmental stimulation and few educational or vocational opportunities. They are never allowed to touch their families; all visits are conducted behind plexiglass partitions while the prisoners are handcuffed and shackled. At both facilities but particularly at the MCF during its early years of operation prisoners have endured excessive physical violence including beatings and unnecessary forced "cell extractions" carried out by teams of guards. After spending years shut off from each other and largely cut off from the outside world, many of these prisoners are abruptly released into the outside world.

Based on two visits to each facility over a three-year period, Human Rights Watch has concluded the conditions at these facilities reflect an excessively punitive approach to "problem" prisoners that does nothing to encourage their ability to reintegrate successfully into the general prison population or society. For some prisoners, the psychological consequences of supermaximum security confinement can be devastating. The Indiana Department of Corrections (DOC) has acknowledged that the harsh conditions at the MCF and the SHU are not necessary for all inmates and can be ameliorated without jeopardizing the goals of security and discipline.

The confinement of persons who are mentally ill in these facilities is particularly reprehensible. Mentally ill prisoners often end up in the MCF and the SHU because they are unable to adjust to therules and stresses of prison life. "To force prisoners with serious psychiatric disorders to live in extreme social isolation and unremitting idleness in a claustrophobic environment is barbaric," according to Dr. Carl Fulwiler, a psychiatrist who accompanied Human Rights Watch to visit the MCF and the SHU in July 1997 as a representative of Physicians for Human Rights. "The cruelty of confining them in the conditions which can aggravate their illness is compounded by the failure of the Indiana DOC to provide them with adequate mental health services."

The dangers of placing mentally ill prisoners in supermaximum security facilities is exemplified by the case of Edgar Hughes, an inmate at the SHU who had been hospitalized numerous times in his life with psychiatric problems. Hughes, who was actively psychotic and had had physical confrontations with guards, mysteriously suffered a head trauma on September 11, 1997. His injuries are so severe that the current prognosis is that he will remain in a vegetative state. The available facts suggest one of two explanations: either Hughes was severely beaten by guards or he suffered a psychiatric breakdown during which he deliberately injured himself. Either way, his confinement at the SHU caused a terrible tragedy. Human Rights Watch has called on Indiana authorities to carry out a thorough investigation of this incident and to hold accountable anyone responsible for his condition.

Based on its findings, Human Rights Watch makes the following recommendations:

1. Offer Treatment and Conditions of Confinement Appropriate for Mentally Ill Prisoners
The Indiana legislature should:

Enact legislation that bars the administrative or disciplinary segregation in conditions of extreme social isolation and reduced environmental stimulus of seriously mentally ill inmates or of inmates who are at significant risk of suffering a serious injury to their mental health if confined in such conditions.
Provide the Indiana DOC and/or the Department of Mental Health with the necessary financial resources to properly house and treat inmates who should not be confined at the SHU or MCF because of their mental health condition or histories.
The Indiana Department of Corrections should:
Develop, or collaborate with the Department of Mental Health to develop, secure facilities to house and treat mentally ill inmates who cannot be confined in the general prison population because of the safetyand security risks they pose, but who do not meet the existing criteria for in-patient hospitalization. These facilities should provide physical conditions and social interaction conducive to mental health and rehabilitation, and should be staffed by qualified mental health professionals.
Undertake a comprehensive mental health evaluation of all inmates currently confined at the MCF and the SHU to identify those who should be excluded from segregated confinement because they are currently suffering from a serious mental disorder, have a history of severe mental illness or whose mental condition (e.g., brain damage, mental retardation, chronic depression) makes them vulnerable to deterioration if they remain in those facilities.
Develop procedures to ensure that no prisoner sent to the MCF or to the SHU remains there for more than a brief period if they are persons for whom the risk is high that confinement in such facilities will cause serious mental health injury.
Provide frequent monitoring by qualified health professionals of inmates at the SHU and MCF to identify those who need mental health services.
Expand the range of mental health services available to inmates at the SHU and MCF, and grantinmates prompt access to such services.
Provide sufficient staff to meet prisoners' mental health needs. It should also provide adequate custodial staff to enable prisoners to be escorted as needed to meetings in private with mental health staff, medical visits, meetings with visitors, and other activities conducive to their mental well being and rehabilitation.
2. Reduce Periods of Solitary Confinement

The Indiana Department of Corrections should:

Discontinue the policy of indefinite administrative segregation. Inmates should be assigned to administrative segregation for a fixed term that is not excessively long. Inmates should be able to reduce their time in administrative segregation through good behavior. No inmate should be assigned to an additional period of administrative segregation within three months of a prior period of segregation. Exceptions to this rule should only be permitted upon a finding, following a hearing, that the inmate constitutes a serious danger to prison safety and security and cannot be safely confined in a less restrictive setting. Such an inmate should also receive a mental health evaluation by an independent psychiatrist who must certify that the inmate is not suffering from severe mental disorders that would be exacerbated by continued segregation.
Refrain from sentencing prisoners to disciplinary segregation at the MCF or the SHU for more than short periods of time unless they are guilty of extremely dangerous or violent actions, such as assaults against staff or prisoners causing serious bodily injury. Inmates should be able to reduce the period of disciplinary segregation through good behavior.
Review disciplinary policies with the goal of instituting greater proportionality between sanctions for rules infractions and the type of infraction and, in particular, to reduce the amount of disciplinary time awarded for nonviolent infractions.
Reduce the use of additional time in segregation as a punishment for violation of rules by segregated inmates. Explore alternatives that would serve the goal of promoting rule-abiding behavior by inmates without prolonging their time in segregation (e.g., use of increased privileges contingent on good behavior, training in anger and impulse control, and increased mental health services).
Establish equivalent policies governing transfer to, release from, and privileges for disciplinary segregation inmates at the MCF and at the SHU.
3. Improve Physical Conditions

The Indiana legislature should:

Provide sufficient resources to the Indiana DOC to finance the modification of the physical plant at MCF and the SHU to eliminate egregiously harsh and harmful conditions.
The Indiana Department of Corrections should:

Renovate the MCF and the SHU to create genuine outdoor recreation areas in which inmates are exposed to sunlight and can see outside of the facility, and indoor or outdoor recreation areas large enough to allow inmates to run at a reasonably high speed and to exercise with another person comfortably.
Construct sufficient windows in cells at the SHU so that no prisoner is confined in a windowless cell for more than a brief period.
Replace the solid steel cell doors in use at the MCF with doors, such as those in use at the SHU, that allow prisoners greater opportunities for social interaction.
4. Eliminate Unnecessarily Harsh and Counterproductive Practices

The Indiana Department of Corrections should:

Establish a program of increased privileges, including enhanced access to congregate activities and educational and vocational activities, to reward and encourage infraction-free and responsible behavior by inmates confined in administrative and disciplinary segregation.
Encourage increased contact between inmates and their families and communities. The department should end the routine shackling of all inmates during visits and consider permitting selected inmates to have contact visits with their families. It should increase access of inmates at the SHU to telephones.
Discontinue its practice of releasing inmates into society directly from segregated confinement. Prior to release from the MCF or SHU, all inmates should be provided effective transition programming to facilitate social readjustment.
Reduce racial tensions in the MCF and the SHU by, among other things, undertaking aggressive efforts to recruit and train African Americans as correctional staff, providing increased racial sensitivity training to staff, and emphasizing to staff through the use of internal disciplinary mechanisms that racial harassment and discrimination will not be tolerated.
Enhance monitoring and supervision of correctional staff and utilize disciplinary mechanisms to prevent and punish the inappropriate, unnecessary, or excessive use of physical force.
The Indiana legislature should:

Instruct the Indiana DOC to review conditions and practices at the MCF and the SHU to identify measures needed to better promote the rehabilitation of inmates and their ability to lead law-abiding lives upon release. The review should be undertaken with the participation of outside professionals with correctional, mental health and other relevant experience and with input from inmates and should result in a public report that includes findings and suggested reforms.
5. Monitor Conditions at the MCF and the SHU

The Indiana legislature should:

Create a permanent independent ombudsman with the authority and adequate staff to: monitorconditions in the MCF and the SHU; report its findings to the Indiana DOC, the legislature, and the public; and make recommendations for reform.
Create a permanent independent review committee composed of qualified mental health professionals who are not employed by the Indiana DOC to monitor mental health care in the Indiana prison system.

Poor Public Defenders

From The Indpls Star>

Today's Editorial
Justice for all includes the poor

March 4, 2005

Our position is: Indiana must institute a more equitable system for providing legal assistance to indigents.

The U.S. Supreme Court ruled in 1963 that poor defendants deserve a lawyer, regardless of whether they can afford one. Yet, 40 years later many indigents aren't receiving adequate representation in an overburdened judicial system.

An American Bar Association study released last month determined that poor defendants aren't much better off than they were in '63. Worse, the study ranks Indiana among the bottom five states in giving legal assistance to the poor.

Thousands of indigents still appear in court without a lawyer, while others are stuck with attorneys who are unable or unwilling to dedicate enough time and resources to their cause.

The report, co-authored by Indiana University Law School Dean Emeritus Norman Lefstein, declared the situation a crisis. It ranked Indiana 46th among the 50 states in providing defense attorneys to indigent suspects.

"We have a significant problem delivering high-quality legal representation to indigents in this state," said Larry Landis, director of the Indiana Public Defenders Council.

The study also criticized the justice system for having too many inexperienced and underpaid public defenders. Many have heavy caseloads. They show up a few minutes before court begins, only to urge their clients to sign plea deals, regardless of whether they're guilty or not.

"All too often, defendants plead guilty, even if they are innocent, without really understanding their legal rights or what is occurring," the report states.

Indiana has allocated only $9 million to pay for defending indigents this year. By contrast, trial judges' salaries cost the state $41 million and the salaries of prosecutors and chief deputy prosecutors run $17 million. The discrepancy smacks of unfairness. Also unfair is a system used in 39 counties by which judges hire lawyers on private contract to represent indigents. That method doesn't allow the defense sufficient independence from judges as a guarantee that indigents will get fair representation.

The General Assembly must fix the inequities by finding more money to provide legal help for indigents.

Tuesday, March 01, 2005

Newman fails to Investigate Cottey Again

From Channel 13 News

Another Story about Prosecutor Newman not investigating Corruption



On February 15, 2002, Gene Tomey agreed to plead guilty to seven federal charges of mail fraud, in which he had Kroger mail checks to vendors for items purchased for his personal use. An initial hearing is scheduled for March 1, 2002. Tomey faces a maximum of five years in prison and $250,000 fine on each count.

Reported by Roger Harvey, photographed and edited by Bill Ditton and produced by Gerry Lanosga and Kathleen Johnston.

For 13 years, Marion County Sheriff's Major Gene Tomey held down two full-time jobs. In addition to being one of Sheriff Jack Cottey's top aides, Tomey also worked as head of security for the Kroger Company. In January 1999, however, Tomey resigned from Kroger, saying it had become too difficult to do two jobs at once.

But Eyewitness News has learned Tomey's abrupt departure came amid allegations of serious misconduct involving his work at Kroger. The allegations included misappropriation of Kroger money and use of the company's resources to assist Sheriff Cottey's re-election campaign.

An internal memo, written by one of Tomey's subordinates at Kroger and obtained by Eyewitness News, details the alleged diversion of more than $16,000 worth of electronics and other equipment. In invoices to Kroger, Tomey authorized the purchase of equipment including laptop computers, portable scanners, color televisions, office furniture and a high-end cellular phone.

It was all charged to Kroger, and according to the memo, some of it ended up at Tomey's home or at the City-County Building in his sheriff's department office. "It kinda surprised me at first because I didn't know what was going on," said Mark Toffollo, who runs a Kroger contractor, Photoscan Security Systems. "Gene was the go between between Kroger and me. They'd say purchase something and I didn't think anything out of the ordinary. I just purchased it and went on."

Toffollo confirmed the elaborate arrangement detailed in the internal memo. First, Tomey would send his Kroger employee to an electronics store. The employee would use his personal credit card to buy equipment. Then Photoscan would reimburse the employee, and Photoscan would cover its costs by billing Kroger. Some of the transactions, according to the memo, were made secretly.

For instance, the memo states Tomey took a newly-purchased laptop to his county office and swapped it with an old one that was to be given to a friend at Kroger. Tomey's employee wrote: "I was told by Gene to call Dennis and give it to him in the parking lot rather than inside where it would be seen." Again, Kroger didn't know about the equipment it was buying because, according to the memo, Tomey was using most of it himself - sometimes at his home and sometimes at his county office.

And who approved the invoices?

Tomey himself. There's another disturbing element to this story, one involving Sheriff Jack Cottey's re-election campaign. The internal memo refers to frequent trips to Photoscan to pick up campaign donations. According to the memo, Photoscan's Mark Toffollo said "he was not making the donation and had been told by Gene to charge it off as equipment as were so many other things."

Toffollo told Eyewitness News about one specific occasion when Tomey asked him for a $2,000 contribution to Cottey. "I said I can do that, but I don't have the cash flow now," Toffollo said. "He said, 'Ok, I will turn it in for you and you can reimburse me.' And I said sure, that wasn't a problem."

In fact, Cottey's fundraising reports show a $2,000 contribution from Tomey on July 7, 1998. Toffollo says he later wrote Tomey a check to cover the gift.

Under Indiana law, that's an illegal third-party contribution - a class B misdemeanor.

What's more, a Kroger invoice obtained by Eyewitness News shows Photoscan billing Kroger for a $2,000 closed-circuit TV system on july 16, 1998. That's less than two weeks after Tomey's contribution of the same amount.

Toffollo denies any connection between that invoice and his campaign contribution. But he freely acknowledges political contributions to the sheriff as a cost of doing business. "We were getting a lot of business from them and doing a lot of business with sheriff department," he said. "It wasn't anything out of the ordinary to me."

So did Kroger actually receive the closed-circuit system? We don't know, because Kroger wouldn't talk about it.

Gene Tomey refused an on camera interview but told us he doesn't think he did anything wrong.

Tomey's boss, Sheriff Cottey, refused our request for an interview.

Those officials could be compelled to talk to the FBI, however, which sources say is investigating both the campaign contributions and the credit card purchases.

Marion County Prosecutor Scott Newman said he also is concerned, particularly about the allegations involving campaign funds. He said he will make his own inquiries.

Friday, February 25, 2005

A Matter of Trust

Cover Story [read from original site here.]

A Matter of Trust

Sheriff Jack Cottey, a Multimillion Dollar Trust Fund

and the Brutal World of the Marion County Lockup

By Fran Quigley

It would be hard to convince people who have spent time in the Marion County Lockup that they were the beneficiaries of a multimillion dollar trust fund.

When John Hughes (an alias) was nearly beaten to death in the lockup, he saw no evidence of an inmate trust. He just knew there were no guards available to stop the dozens of uninterrupted kicks and punches by his cellmates that left John's nose, jaw and eye socket crushed. While David Hoffman slept for days on the lockup's sticky concrete floor without so much as a mat on which he could lay his head, he saw no dividends from inmate collect calls fees funneling into coffers controlled by Marion County Sheriff Jack Cottey.

No mention of these funds was made to Ryan Downey and his cellmates as they tried to maneuver around a pile of human feces stacked high in the steel toilet of their lockup cell. Likewise, when Kristan Stewart and Angela Hamilton (who prefer their real names not be used) were in the lockup and unable to get access to tampons to stop them from soiling their clothes or a telephone to call their family for help, they failed to enjoy any benefit from an inmate trust fund.

But NUVO's ongoing investigation of Cottey's administration of the lockup has revealed that a Marion County Jail Commissary Trust does exist. Further, the fund is annually replenished with millions of dollars diverted from collect call fees incurred by the very inmates who live in squalor and fear in the sub-basement of the City-County Building. Rather than directing this money to the benefit of inmates whose families pay collect call fees that can be as high as $3.25 for the first minute, Cottey uses much of the fund to boost his public profile and increase the comfort of the highest echelons of the sheriff's administration.

A Captive Market

The primary source of the bulging coffers of the Jail Commissary Trust is a series of lucrative contracts entered into between Cottey and Ameritech. In exchange for the exclusive right to provide telephone service to the inmates of the lockup, jail and other inmate holding areas operated by the sheriff, Ameritech paid a $524,000 bonus to the Jail Commissary Trust in 1995, the first year of Cottey's administration. In return for agreeing to a three-year extension of this contract in 1997, the sheriff collected a $786,000 bonus payable to the trust. In addition, the sheriff receives 40 percent of the gross receipts for all inmate telephone calls.

For their part, Ameritech and other telephone service providers are eager to make such arrangements because the inmates constitute a literally captive telephone market who have no choice but to pay high fees if they want to speak to their family, friends or lawyers.

Those fees add up. Public records obtained by NUVO indicate that from 1996 through 1998, the sheriff collected over $ 5.5 million from collect call fees to use at his discretion. In contrast, Gov. Frank O'Bannon has $*,***,*** in funds to use at his discretion.

Sheriff's Inmate Call Revenues 1996-1998

1996 -- $1,755,794.47

1997 -- $1,799,180.70

1998 -- $1,975,394.10

Source: Marion County Sheriff's Department

The common understanding in county government is that these funds are reserved for uses that will improve the conditions of the inmates whose families pay the telephone fees. City-County Councilman William Dowden, chairman of the Council's Public Safety Committee that oversees the Sheriff's Department, assured NUVO that the trust was operated "for the enhancement of the lifestyle and for amenities and extras for the prisoners." Indeed, Cottey himself replied to NUVO's public records request in part by insisting that the trust is used for the "betterment" of the jail and lockup inmates.

But the conditions of the lockup suggest that much of this bounty is not spent for the benefit of those inmates. A NUVO investigation has revealed that, while a limited portion of the trust is devoted to expenses such as jail food trays or inmate rule books, a large portion of the funds are spent on items that have no direct impact on the inmates' "betterment." Cottey insists that trust funds not spent on the inmates are used for the benefit of the Sheriff's Department. However, many of the trust purchases most directly benefit the public profile of the sheriff himself and the comfort of the highest level of the sheriff's administration.

Inmate "Betterment"?

Some of the largest expenditures from the Jail Commissary Trust over the past three years include thousands of dollars spent on travel and leased vehicle expenses for Sheriff Department executives, maintenance and storage fees for the sheriff's airplane, travel expenses to the World Police and Fire Games and expensive new furniture for executive offices.

Nearly a quarter-million dollars was spent on a variety of promotional material, including Cottey trading cards, "Junior Deputy" badges and stickers and a wide range of McGruff the Crime Dog promotions, including McGruff dolls, a McGruff newsletter and even a McGruff golf cart. The trust also pays the programming and server costs for the sheriff's Web site, whose home page is dominated by a picture of Cottey and his wife and a warm biography of the sheriff.

Some Purchases From the Jail Commissary Trust; 1995-98

McGruff and Jr. Deputy expenses (dolls, newsletters, golf cart, trading cards) $221,833.54

Executive travel (leased vehicles, conference and travel expenses, travel to World Police & Fire Games) $71,160.50

Aircraft maintenance and insurance $4,382.59

New furniture and renovation of executive offices $24,850.63

Web site programming and server cost $4,200

Coverage of shortages in 1998 regular sheriff budget $206,064

Donut machine $3,970

Source: Marion County Sheriff's Department

Cottey's critics say many of these investments have helped his political career at least as much as they have contributed to fighting crime. Cottey was overwhelmingly reelected to a second term as Marion County sheriff in 1998. A former five-term state representative, Cottey is the Warren Township Republican chairman and a growing force in the embroiled world of Marion County Republican party politics. His critics say that Cottey clearly understands the electoral value of trust expenditures like the personalized Web site and the McGruff paraphernalia.

Meanwhile, Back In the Sub-Basement ...

From the perspective of the grim confines of the holding cells in the sub-basement of the City-County Building, it does not appear that either Cottey or McGruff has shared much of their collect call windfall with the inmates in the lockup. Last month, NUVO published a series of articles on the filthy and frightening conditions of the lockup, telling the stories of victims of violent beatings and people who slept for days on concrete floors in soiled clothing. Since the lockup is a holding area for people recently arrested, many of the lockup inmates face these conditions but are never charged or convicted of any crime.

Since the publication of these articles, NUVO has been contacted by attorneys, former lockup inmates, bail bondsmen and jail vendors who affirmed the articles' description of the lockup's many problems. Through discussions with attorneys who have visited similar institutions throughout the country, it appears that Indianapolis may be home to one of the worst temporary holding facilities in the United States.

One of the persistent criticisms of Cottey's administration of the lockup has been the extreme disorganization that prevents recently arrested people from being released for hours after they have posted bond. Computers constantly crash and incarcerated people get lost in the shuffle. Angela Hamilton, a 22-year-old college student from an upper middle-class Indianapolis family, learned about the bewildering nature of the lockup after being arrested on an allegation of drunk driving two weekends ago.

Angela was stunned by the contrast between the lockup and the popular conceptions of jail situations. "My impression of jails from TV and movies was that the first thing you get is a phone call. I sat in the lockup from the middle of the night until the next afternoon, and I was never allowed to use a phone to tell my family I had been arrested."

After being told she would be released within an hour or two, Angela instead waited 10 more hours while her family frantically tried to find her. Finally, a lockup official walked up to the cell Angela had been in for 12 hours. "There you are," he said in surprise. "We've been looking for you all over."

Answering To No One

Cottey's reasons for not directing the trust money to address the problems of the lockup are unknown. The sheriff has refused NUVO's request for an interview about the lockup conditions and his use of the Jail Commissary Trust. More surprising, the sheriff apparently doesn't have to answer to anyone else either. In researching this article, NUVO contacted the State Board of Accounts, the City-County Council, the Indiana Utility Regulatory Commission, the Marion County Commissioners and the Marion County Auditor, and all stated they were powerless to review Cottey's administration of the Jail Commissary Trust.

As for the collection of the money to fund the trust, neither the initial Ameritech contract or the 1997 renewal were ever subject to a bidding process. The law exempts service contracts from bidding requirements, but the lack of competition for the lucrative jail phone contracts has angered many smaller providers of telephone services.

As for the sheriff's use of the money placed in the trust, the Indiana General Assembly has allowed Indiana sheriffs to use jail commissary funds "at their discretion" without the need for appropriation by any other agency. Even so, the same law requires Indiana's sheriffs to submit a record of their trust receipts and disbursements to the State Board of Accounts and their county's fiscal agency for review.

A public records investigation indicates that Cottey fails to comply with these requirements. The sheriff and other Marion County agencies skirt the State Board of Accounts by submitting their records instead to a private auditing firm, a practice described in previous NUVO articles concerning the City of Indianapolis, which hasn't had an independent audit for the last 14 years. Similarly, Marion County's Auditor and Commissioners could not find any evidence that the sheriff provided them with an accounting of his use of the Jail Commissary Trust.

"It's Just Stealing From Poor People, That's What It Is"

Since Cottey would not grant an interview for this article, the best evidence of his rationale for the use of the trust comes from his written reply to NUVO's public records request for the trust revenue and expenditures. Cottey wrote, "I firmly believe that the taxpayers of this county, who are forced to support inmates in this jail 24 hours a day, seven days a week for crimes they have committed against citizens, certainly would support our continuing efforts to make inmates foot some of the bill."

But families of inmates and their advocates say Cottey is wrong, because it is not the inmates who are footing the bill. They point out that it is the low-income families of inmates, not the inmates themselves, who usually pay the high collect call fees. Those fees can be a substantial burden to a family already struggling to pay rent and buy food while a provider is imprisoned.

Families will get a phone call out of the blue with a recorded message stating, "This is a call from a correctional institution. If you accept this call, you will be charged $3.25." The call does not indicate who the caller is.

One of the people who pays the phone fees is Deborah Sims, whose son has been incarcerated in both the lockup and the jail. In a low and weary voice the listener has to strain to hear, she explains the obligation she feels to accept her son's collect calls so as to assure him that someone on the "outside" still cares about him. But she sometimes has to pay an hour's wages to Ameritech just to cover the cost of a local call, and she hardly thinks it fair. "The people the inmates are calling have committed no crime," she says. "So why should we be punished?"

One local criminal defense lawyer is more blunt in his assessment. "It's just stealing from poor people, that's what it is. The sheriff ought to be ashamed of himself."

Advocates for inmates insist that Cottey's collect call funds have the potential to greatly benefit the inmates and the community as a whole. Lynn McDowell, a former prosecutor who now supervises Indiana University Law School students representing lockup and jail inmates, says she too often sees the same people return to crime after being released. McDowell thinks this recidivism rate could be reduced if the sheriff used some of the trust to provide substance abuse treatment, education and anger control counseling to the inmates who badly need it. Despite the millions of dollars flowing into the trust, she says such programs currently do not exist. "As it is now in Marion County, they get nothing."

Deborah Sims looks at the numbers on her phone bill, considers her son's experience in the lockup and agrees that the collect call fees could be spent more wisely preventing inmates from preying on the community once they are released. "I've seen statistics on how often people commit crimes after they are let out," she says. "You lock them in there and you treat them like animals, so how do you think they are going to act when they are set free?"

A Tale of Money

A Tale of Money

Another big contributing factor to the formation of the PAIR Mental Health Diversion program was the existence of hidden political slush funds and the desire of politicians to keep knowledge of these funds from the general public.

The slush funds are the diversion receipt fund of the Marion County Prosecutor’s Office and the Jail Commissary Fund of the Marion County Sheriff. The Prosecutor at the time was Scott Newman and the Sheriff was Jack Cottey. These funds are at the total discretionary use of the respective politicians and are in the millions of dollars.

The diversion fund is funded by fees from those placed on diversion. Diversion is the process where the prosecutor withholds prosecution for an alleged crime if the accused gets counseling or treatment. It is at the total discretion of the prosecutor and critics have charged that this is a way for the prosecutor to benefit financially by an abuse of his powers. Some have even said that it in effect allows the guilty and innocent to buy their way out of trouble with the law without due process. The money in the funds comes from the fees charged by the prosecutor for this service and amounts in the tens of millions of dollars. This reserve fund is then for use by the prosecutor, but there is a stipulation in the law authorizing this fund states that some of the money must be used for rehabilitation of the offenders. Only a small amount of this money is used for the offenders or for sociological problems brought on by family violence and the mentally ill offender.

Assorted fees and fines fund the Jail Commissary Fund. The primarily source of revenue comes from the jail’s contracts for telephone use by the inmates. This source alone provides a couple of million dollars per year to the commissary fund. The fund is supposed to be used to improve conditions at the jail and provide for rehabilitative services to the inmates. Again the disbursement of the monies is totally at the supervision of the sheriff. In recent years the fund has paid for things like the private jet transportation of the sheriff, luxury SUV’s, baseball card like business cards for the deputies, and costumes for PR events. The abuse of these funds became so bad that it was written about in the media and a state law of passed to force the sheriff to start accounting for the use of the funds. There is no evidence that this law has stopped this abuse of power.

The PAIR Diversion Program was a cooperative program that sought to deal with the problem of the mentally ill offender. All of those involved worked as volunteers from their respective agencies. The program cost no new money. The motivation of most of the agencies involved was to save money. This program was the perfect trophy for the sheriff and prosecutor. It was an honorable program that could be shown to be doing public good. It met the mandates of both the diversion fund and the commissary fund. However, it did not take any money from the prosecutor or the sheriff. Both could get all the glory without spending any money from their slush funds.

Wednesday, February 23, 2005

Dr. Hoshour

From The Indianapolis Star

Indicted doc faked suicide, then fled Indiana

November 22, 2003, Indianapolis, Ind. -- Indianapolis police seized computer equipment and financial records Friday from the home of Dr. Thomas Hoshour in a search for clues to where, as they believe, he is hiding. Documents filed Friday maintained that Hoshour, 58, faked his suicide before disappearing two weeks ago. Marion County prosecutors say the director of eight drug and alcohol rehabilitation clinics, called Sober Life Alternatives, billed insurance companies for tests and treatment that were never done, racking up more than $200,000 in false claims.

Records show Irsay had over 100 prescriptions in one year
Roger Harvey/Eyewitness News

Indianapolis, Nov. 19 - Pharmacy records show just how extensive Irsay's use of prescription drugs was up until July of this year.
When the National Football League held its winter meetings in Orlando last March, Jim Irsay was there.
And according to pharmacy records, he was also using large quantities of powerful narcotics like Oxycontin and Percoset, 10 prescriptions in March alone.
The records were provided to Drug Enforcement Administration investigators by Charles Lindstrom, owner of the Nora Apothecary.
Ferd Samper is Lindstrom's attorney. "He did nothing wrong."
Samper's client has a letter granting him immunity in exchange for cooperating with federal investigators.
Their investigation is focused on Irsay and several pharmacies and doctors, including Nora Apothecary and Dr. Gregory Chernoff.
Lindstrom has records for more than 100 painkiller prescriptions in a year's time. Most of them were signed with Chernoff's name and written to Jim Irsay.
"If Chuck Lindstrom had not filled these Jim Irsay would have gone to one of 150 other pharmacies around town and got them filled," says Samper. "He was going to get them filled no matter what."
Samper says Lindstrom was concerned by the number of prescriptions and called Chernoff to verify them.
Samper: He talked to him two or three times.
Eyewitness News: And what was said in that conversation?
Samper: Well, I believe Doctor Chernoff said, "Fill them. I am trying to work him off them."
Chernoff has declined to comment, citing patient confidentiality.
Chernoff and Lindstrom aren't the only ones whose names have surfaced in the investigation. An Irsay friend and former Colts player, Gary Padjen, also received painkiller prescriptions from Nora, according to records. They were written to Padjen and signed with Chernoff's name.
Also appearing in Lindtsrom's records, a prescription written to Irsay by Dr. Tom Hoshour of Sober Life Alternatives.
This isn't the first time Eyewitness News has mentioned Sober Life Alternatives, a north side treatment center. Last week, we reported that Sober Life is one of several places where Irsay has gone for treatment.
According to state records, federal authorities investigated Nora in 1973 because of significant shortages of drugs like Percodan and cocaine. Charles Lindstrom got a $500 fine and ended up buying out a partner who was implicated in the drug diversion.

Doctor speaks out on Irsay investigation
Steve Jefferson/Eyewitness News

Indianapolis, Nov. 20 - "Jim Irsay and I have been friends for probably ten years." Dr. Tom Hoshour is a long time friend of Indianapolis Colts owner Jim Irsay.
He also treated Irsay for an addiction to prescription drugs.
Eyewitness News has reported Irsay is at the center of a federal investigation into possible prescription fraud.
"My role as the investigation goes is, I am one of many treatment providers, as I would imagine that Mr. Irsay has had treatment by several providers," says Dr. Hoshour.
The federal investigation centers on Irsay's use of highly addictive painkillers, and what role several pharmacies and doctors played in obtaining those drugs.
The Eyewitness News Investigators obtained prescriptions written for Irsay, including one by Hoshour.
Hoshour told Channel 13 he never writes prescriptions for addictive medicine to any of his patients, but that he only offers drugs like Paxil, Prozac and Wellbutrin. "Medications I prescribe to my patients, whoever they may be, are nonaddictive medications to help them with cravings and detox to get them off the medication."
Hoshour himself knows addiction recovery firsthand. He shares with his patients that he too was an addict who eventually ended up behind bars. "I am not ashamed of it."
In 1989, Hoshour was convicted and lost his medical license in a prescription drug case. He served time in federal and state prisons for possession with intent to distribute narcotics and conspiracy to commit murder.
He now has his medical license back and is well regarded by local judges and others for his work as an addiction counselor.

Hoshour says he has not spoken with Irsay since the investigation started.
But, like himself, he hopes the NFL owner is on the road to recovery. "It's no doubt in my mind that guy's got what it takes."

Dr. Hoshour's prescription to Irsay was among documents a local pharmacist turned over to federal investigators. But Hoshour says he's confident he won't be implicated in any wrongdoing.
Hoshour says although the Irsay investigation is ongoing, he's glad to see the growing problem of prescription drug addiction finally getting so much attention.

January 22, 2004
Detective Thomas McGraw
Doctor wanted as a fugitive from justice
Crime Stoppers of Central Indiana is offering a reward for information that leads to the capture of Doctor Thomas E. Hoshour, who authorities believe is responsible for stealing hundreds of thousands of dollars from multiple insurance companies.
According to Detective Darin Odier with the Indianapolis Police Department, in July of 2003 the Marion County Prosecutor’s Office charged Thomas Hoshour with Theft and Corrupt Business Influence. These felony charges were brought against Hoshour after an investigation revealed that for over a three-year time period, Thomas Hoshour’s company had billed hundreds of thousands of dollars to recovering drug addicts’ and alcoholics’ insurance providers for services and treatment that were allegedly never performed. On November 5, 2003, Thomas Hoshour failed to appear in Marion County Criminal Court and a warrant was issued for his arrest. Detective Odier said that on the following day, authorities believe Hoshour faked his own suicide and fled the Indianapolis area and has been a fugitive from justice ever since.
Thomas Hoshour is white, 57-years-old, 6-feet tall, and 150 pounds, with brown or hazel eyes. In July of 2003, he had short, brown and gray hair. A photo of Hoshour can be seen at the Crime Stoppers website at
Please contact Crime Stoppers at (317) 262-TIPS or at 1-800-92-ALERT if you have any information that may assist authorities in locating Thomas Hoshour. Callers will remain anonymous and will be known only by a code number and may be eligible for a cash reward of up to $1000.

Feb 11, 2004
Insurance fraud suspect was on the run for 3 months

By Vic Ryckaert
February 11, 2004

After three months on the run, a fugitive physician who, prosecutors say, faked his suicide was captured Tuesday in the basement of an Indianapolis home.

Police found Dr. Thomas Hoshour, 58, about 11 a.m. in a friend's Eastside home in the first block of Bankers Lane. Prosecutors say Hoshour surrendered without a struggle.

Hoshour, prosecutors say, skipped town in November to avoid trial on fraud, theft and corrupt business influence charges. He is accused of billing insurance companies for tests and treatments that never were done.

"I would like to be the first to welcome Dr. Hoshour back to Indianapolis," Marion County Prosecutor Carl Brizzi said.

Hoshour, a recovering alcoholic, ran eight Sober Life Alternatives clinics in Indiana. His patients ranged from prostitutes to judges and included Indianapolis Colts owner Jim Irsay, who was treated for substance abuse in 1998. Three clinics now operate under new management.

Little is known about where Hoshour has been hiding since he failed to appear for a Nov. 5 hearing.

Hoshour spent time in Illinois, prosecutors say, where he obtained a fake driver's license Nov. 22 under the name Bruce Rawlings.

He also spent time in Florida, investigators say. They found a Delray Beach, Fla., hotel key in his car and handwritten notes indicating he had spent time in Sarasota, Brizzi said.

"He didn't look good after he was arrested," Brizzi said. "He was obviously sleeping in his car."

Hoshour, Brizzi said, was in Indianapolis about 3 a.m. when he began calling his estranged wife. Diane Hart gave grand jury investigators the phone number Hoshour used.

Police traced that cell phone number to Hoshour's friend and former employee Ed Karwatka. Police found Hoshour in Karwatka's home and arrested both men about 11 a.m.

Karwatka, 42, will be charged with a felony for helping Hoshour hide, Brizzi said.

Karwatka is director of training for Health Recovery Centers of Indiana, the group that now runs Hoshour's clinics, said Brose McVey, a lawyer for the clinics.

Hoshour will face new charges of failure to appear, forgery -- for carrying the fake driver's license -- and possession of a controlled substance for carrying the painkiller Vicodin, Brizzi said. Hoshour is scheduled to appear at 11 a.m. today in court, where prosecutors will ask that he be held without bond until his trial.

Hoshour was arrested in July and accused of racking up more than $200,000 in false insurance claims. He had been free on $7,500 bond before, prosecutors say, he left town.

According to documents filed in November, Hoshour staged a suicide in his Cicero home, leaving behind a note, a knife, papers from his pending divorce and empty vodka bottles.

"We never believed that the suicide was genuine," Brizzi said. "The thing about suicides, if you are successful, it is pretty hard to conceal your own death."

As he was being driven into jail Tuesday Hoshour told WTHR (Channel 13), The Indianapolis Star's news-gathering partner: "I was going to kill myself, but I got so drunk I couldn't do it."

A fitness buff, Hoshour spent the past decade rebuilding his career after serving time in prison for his role in a murder scheme.

In 1989, Hoshour, then an osteopathic physician practicing in Indianapolis, pleaded guilty to state charges of conspiracy to commit murder for providing a gun and bomb to an informant for the U.S. Bureau of Alcohol, Tobacco and Firearms.

Hoshour asked the informant to use the bomb to kill a family friend, a plot that never hatched.

Under a plea deal, Hoshour was sentenced to 30 months in prison. He also simultaneously served a 30-month federal sentence for possession of a bomb and writing illegal prescriptions.

Call Star reporter Vic Ryckaert at (317) 444-2750.

Saturday, February 19, 2005

Failings of Scott Newman

The Top Ten List of Newman's Failings
[or how history should remember him]

1. Established "no tolerance" or "red zones" throughout Indianapolis where misdemeanants were prosecuted to the full extent of the law. This was often Indy's poorest and neediest citizens who could not afford legal help. In fact, many or those arrested were severely mentally ill or mentally retarded.

2. Publicly waged a "war" against the top ten misdemeanor persons. Eight of the ten were mentally ill or mentally retarded. All were without resources to defend themselves. At least three of the ten would die within two years under mysterious circumstances.

3. Publicly waged a "war" against the parents of underaged criminals, again who were almost aways poor and uneducated.

4. Disregarded the use of "prosecutor discretion" and sought the most severe penalties for the smallest of crimes. Again this was almost always at the expense of the poor, disabled, or ill.

5. Waged a public war against the homeless. Sought to arrest the homeless on a variety of enhanced charges when they were caught in some of the trendy areas downtown. All were poor and many were mentally ill, disabled, or retarded.

6. He was a major contributor to the problem of jail overcrowding by dragging his feet on the most minor of charges and forgetting the need to punish the dangerous.

7. Refused to investigate the flaws of the previous mayor's bidding process when "privatizing" city government functions.

8. Refused to investigate alleged bribes to the former sheriff, including one "gift" of a new sports car. Link 1

9. Refused to participate in any program to explore racial injustice in the system.

10. Refused to investigate the corruption in the local republican party and it got so bad that the federal authorities had to step in. The federal investigation continues

Public Debate

Critical remarks about the above comments.

1) Unproven. Please provide evidence as to the 'many' were mentally ill or retarded. Also please provide evidence as to 'war on the poor' as a strategy. A memo from the prosecutor's office with something like 'I hate poor people.' will suffice.

2) Please provide evidence. See above.

3) While it is true, criminals often come from poor backgrounds, I do not see the attempt to prosecute them as an attack on the poor. Lawful poor people were arrested and prosecuted?

4) This is the prosecutor's job. People want to see criminals punished. It is the judge and the jury who should grant mercy with justice.

5) Evidence?

6) The prosecutor does not allocate funds. That is the job of the city-county council. Go argue with them. The prosecutor does not magically create money from his ***.

7) Maybe. Or maybe that was not under his control, but rather a matter for the state to investigate.

8) Maybe. Or maybe he also refused to investigate allegations that Santa Clause was real. Perhaps Prosecutors should require some evidence before they go off spending taxpayer money on 'allegations'.

9) Maybe. Or maybe he just refused to participate in any system which was setup only to show racial injustice in the system, even if none existed.

10) Maybe. Or maybe he was just letting the Fed's investigate rather than duplicate effort.

Here's what I have for you.

1) Maybe you're an idiot. Or maybe you're not. But you're not providing any evidence that you're not.

Response to Critical Remarks

You ask a lot. I could spend the rest of my life finding the facts for you. Those in the know, or who worked closely with Newman, know the above to be true. Just for you though, I will promise to keep looking for the required evidence and post it ...somewhere...even if it is years in the future.

Meanwhile, I will try to address the above concerns.

Newman is/was a disciple of a sociologist whose basic theory was that you take care of the small crimes that infringe on the quality of life, you get rid of the big crimes. I will look for his research and provide a link. I believe he was associated with the Hudson Institute. Many have argued that one of the main components of a lessening quality of life is the mentally ill running amok in a community. Some would argue that maybe Newman was just trying to shame the larger system into doing something about the problem.

Item by Item comments:

1. At any given time, more than 20% of the persons in the jail are severely retarded or mentally ill. IT is a proven fact. Get a print out of who was in jail. 90% would be there just awaiting trial because they could not afford bail. Most were/are there because of nuisance crimes and a lack of tolerance by the community. The weak and helpless are just easier to prosecute than a normal person. They don't fight back.

2. This was in the newspaper. They are now charging for research or their archives, but I will try to get to the library to get a print out. The three dead are Albert Mitchell, George Murphy, and Alonzo Scott. This three by themselves had a totalt of over 1000 arrests in the previous ten years prior to being placed on the top ten list. All were mentally ill. All were poor. All were black. All died mysterious deaths. Mitchell died on the street, drunk, face down in a gutter. No one was arrested. George Murphy's body was found dumped and wrapped in a carpet with a bullet wound to the head. To my knowledge, his murderer has never been arrested. Alonzo Scott died after a beating in jail. No one was arrested. As I said, most of the list was mentally ill. It will be hard to publish their names without the official list.

3. Yeah, what ever you say. No innocent person is ever arrested. Those with means can defend themselves better.

4. You must know of the concept of discretion. The judge has to rule on the charge. For almost any crime, there are a range of possible charges. For example, having sex with a drunk girl who was unable to give consent. The charge could be sexual battery or rape. With sex battery there is just a brief range of possible sentences. With rape, the range of sentences could go to life. It is the prosecutor who makes this decision. Going for harsher sentences just because a defendant could not defend himself seems wrong.

5 The homeless were ran out of certain areas or put in jail. Newman fancied himself as a Rudy Gulanni [sic] type who tried to copy some of his actions in New York City. One of these were the panhandling laws. If a person was seen in certain areas, around certain people, they could be assumed to be panhandling and arrested.

6. If 90% of the people in jail at any given time are awaiting trial on their charges, one could argue that the prosecutor certainly has a say in this. The backlog was caused by Newman wanting the max out of the most trivial charges. The tax payers had to pay for this.

7. It was under his control Look at the current articles about Gov. Daniels trying to get a special department or "super prosecutor" to investigate such crimes in counties. Many county prosecutors don't prosecute their buddies. Daniels' new prosecutor could go after these fellows even when the county prosecutor would not. No one can do it now, except the county prosecutor. Marion County is not the only one with this problem. It just has the biggest politicians and the most money involved. [ read here ]

8. There is ample evidence for an investigation and prosecution. How come he did not even appoint a "special prosecutor" to look into it? All doubt of impropiety would have vanished. Here

9. Arguing about racial injustice is not good. Either you believe it happens, or you don't. You seem to believe it doesn't exist, and there is no use arguing this point. You are entitled to your opinion.

10. Maybe we should give all law enforcement over to the federal authorities. At least they follow some rules of justice.

Tuesday, February 08, 2005

Deliberate Indifference

From here.

Under international human rights law, prisoners should not be confined in conditions that constitute torture or that are cruel, inhuman, or degrading. This right includes the right to proper medical care and treatment for mental illness. International human rights law also affirms the separate right to health, which requires appropriate mental health care, to the extent feasible, for all people, regardless of whether they are incarcerated. International standards include detailed provisions on the treatment of prisoners, including mentally ill prisoners — a resource and set of benchmarks, that, if adhered to, would address many of the deficiencies identified in this report.

The ineffective application of international laws and standards within the United States lies not in their substantive shortcomings, but rather in the failure of U.S. Authorities to implement them properly, if at all. International human rights standards are little known and almost never directly applied in the United States. International bodies, including those monitoring compliance with international treaties to which the United States is a party, are typically not heeded in the United States when they issue analyses and recommendations. By focusing on the federal and state constitutions as the sources of rights, the U.S. Government has ignored the development of international legal standards that go beyond constitutionally protected rights.

The U.S. Constitution prohibits cruel and unusual punishment, which the courts have interpreted as requiring prisons to provide mental health treatment to prisoners who have serious mental illness. But the constitution is not violated by malpractice or negligent care. The Eighth Amendment is only violated when prison officials are “deliberately indifferent” to an prisoners need for treatment, not when they provide negligent care or engage in what would otherwise be deemed malpractice. Elected officials — executive and legislative — do not effectively use their respective powers to ensure prison officials provide adequate care, or even meet constitutional requirements. Constitutional standards are primarily enforced through prisoner litigation — litigation which faces enormous procedural as well as substantive obstacles.725

While correctional officials acknowledge — as they must — their constitutional obligation to provide mental health care, they have insisted they meet that obligation even when the care was plainly substandard, if not atrocious. To some extent, their position reflects their awareness that conceding constitutional infirmities would either prompt litigation or would lead to verdicts against them in ongoing litigation. Nevertheless our research suggests a disquieting willingness to accept the minimum level of care required by the constitution as the maximum required, and to press for a “minimum” level that is as low as possible. Few express the admirable aspiration of the director of the Ohio Department of Rehabilitation and Correction, Dr. Reginald Wilkinson, who told Human Rights Watch “if you are going to have a mental health system [in prisons], we want the best one possible, even if the constitution does not require it.”726

International Protections
International human rights law is a vibrant and evolving body of law that protects all persons, including prisoners with mental illness. Its touchstone is the dignity of each human being. Recognition of that dignity requires respect for numerous other rights articulated in the Universal Declaration of Human Rights and such international treaties as the International Covenant on Civil and Political Rights (ICCPR),727 the Covenant on Economic, Social and Cultural Rights,728 and the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (Convention against Torture).729 Recognition of the unique problems and special abuses faced by persons with mental illness has also led to the development of international instruments providing specific protections for them.

The Rights of Prisoners to be Free of Abuse
The ICCPR is the most comprehensive international human rights treaty the United States has ratified and it includes provisions explicitly intended to protect prisoners from abuse or mistreatment. Under ICCPR article 7, no one “shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.” The prohibition against such abusive treatment applies to prison authorities, governing both actions against individual prisoners as well as the overall conditions of confinement in which prisoners live.730 The ICCPR does not, however, simply set guidelines for what prison officials and other authorities should not do; it also imposes positive obligations on them. Article 10 states that: “All persons deprived of their liberty shall be treated with humanity and with respect for the inherent dignity of the human person.”731

Various documents developed within the United Nations flesh out the human rights of persons deprived of liberty and provide guidance as to how governments may comply with their international legal obligations. These documents include the United Nations Standard Minimum Rules for the Treatment of Prisoners732 (Standard Minimum Rules) adopted by the Economic and Social Council in 1957; the Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment,733 adopted by the General Assembly in 1988; and the Basic Principles for the Treatment of Prisoners,734 adopted by the General Assembly in 1990. While these instruments are not treaties, they constitute authoritative guides to the content of binding treaty standards and customary international law.

The Basic Principles for the Treatment of Prisoners establishes prisoners’ entitlement to a quality of health care comparable to that available in the outside community.735 The Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment establishes the obligation of authorities to ensure prisoners are given medical screening upon admission and provided appropriate medical care and treatment as necessary and free of charge.736 The most detailed provisions regarding mental health care for prisoners are contained in the Standard Minimum Rules. According to the guiding principles of the Standard Minimum Rules, the purpose of a sentence of imprisonment is to protect society against crime, a purpose which can only be achieved, “if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self-supporting life….”737 Appropriate medical and mental health services are integral to a properly run prison and to the goal of rehabilitation: “The medical services…shall seek to detect and shall treat any…mental illnesses or defects which may hamper a prisoner’s rehabilitation. All necessary…psychiatric services shall be provided to that end.”738

The Standard Minimum Rules recognize the need to vary the housing, supervision, and care of offenders with mental disorders according to the degree of their illness: those who are psychotic or acutely ill should be placed in mental institutions; those who suffer from “other mental diseases or abnormalities shall be observed and treated in specialized institutions under medical management”; while in a prison, such prisoners “shall be placed under the special supervision of a medical officer.” Prison mental health staff should provide for the psychiatric treatment of all other prisoners who need it.739

The Standard Minimum Rules recognize that prisons must have sufficient numbers of appropriately qualified competent health care staff to meet their human rights obligations. Medical services should include “a psychiatric service for the diagnosis and, in proper cases, the treatment of states of mental abnormality.”740 To the extent possible, prison staff should also include specialists in addition to psychiatrists, including psychologists, and social workers.741 Standards of care should not be lowered because those needing medical treatment are prisoners. “Health personnel, particularly physicians, charged with the medical care of prisoners and detainees have a duty to provide them with protection of their physical and mental health and treatment of disease of the same quality and standards as is afforded to those who are not imprisoned or detained.”742 Clinical medical decisions should be governed by medical criteria. International principles of medical ethics require prison medical staff to provide “the best possible health care for those who are incarcerated,” with decisions regarding their care and treatment based on the prisoners’ health needs, which should take priority over any non-medical matters.743

Proper psychiatric treatment in prison as in the community should be based on a treatment plan drawn up for each patient. The plan should consist of more than just medication.

It should involve a wide range of rehabilitative and therapeutic activities, including access to occupational therapy, group therapy, individual psychotherapy, art, drama, music and sports. Patients should have regular access to suitably-equipped recreation rooms and have the possibility to take outdoor exercise on a daily basis; it is also desirable for them to be offered education and suitable work.744

The Right to the Highest Attainable Standard of Health The International Covenant on Economic, Social and Cultural Rights (ICESCR), in article 12, provides for “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” The United States, as a signatory but not a party to the ICESCR, is obliged to refrain from acts that would defeat the object and purpose of the treaty.745 This right has been interpreted as an obligation on governments to take specific steps to protect and promote health — both by instituting measures to maximize health and by protecting people from unhealthy or dangerous conditions.746 The right to the highest attainable standard of mental health under Article 12 includes a right to services that are available, accessible, acceptable, and of appropriate and good quality, provided by trained medical and professional personnel.747 Persons who are imprisoned retain this right, and they are entitled to a standard of medical care, including mental health care, equivalent to that available in the wider community.

While under the ICESCR everyone has a claim to some degree of mental health care, prisoners have special claims upon the government for mental health treatment. Incarcerated persons become dependent on the state to provide for their medical services; the state thus has the responsibility to protect their health both in terms of the conditions of confinement and the individual medical treatment they require.748 Because imprisonment by its nature can damage the mental well being of prisoners, correctional authorities have a responsibility not only to provide appropriate mental health treatment, but to establish conditions consistent with mental health.

In 1991, the United Nations General Assembly adopted the Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (MI Principles).749 These principles are “the most complete standards for the protection of the rights of persons with mental disability at the international level.”750 They were developed because of the growing recognition internationally that persons with mental illness often faced unique difficulties in ensuring respect for their basic human rights, both in the community and within mental institutions.751 Most international and non-governmental organization (NGO) attention to the human rights of the mentally ill has focused on discrimination and the absence of adequate legal protections against improper and abusive treatment. The principles thus address such issues as consent to treatment and medication, loss of legal capacity, discrimination, and rights and conditions in mental health facilities. According to Principle 20, the principles also apply to persons with mental illness serving sentences of imprisonment “with only such limited modifications and exceptions as are necessary in the circumstances.” Principle 20 also affirms that all incarcerated persons with mental illness “should receive the best available mental health care.”752

The United States and International Human Rights Law The United States has ratified a number of international human rights treaties and instruments but has invested little energy or resources into ensuring they are known and implemented throughout the country. Few prison officials interviewed by Human Rights Watch realize that their work is subject to international human rights standards in addition to constitutional requirements. Few state or even federal officials realize that their responsibilities include ensuring the protection of and respect for human rights under international law, including the rights of prisoners. They are either unaware of [or ignore pronouncements of international treaty bodies and other international entities.

The United States is a party to the International Covenant on Civil and Political Rights and the Convention against Torture. However, it attached limiting reservations, declarations, and understandings to its ratification of these treaties that work both substantively, by restricting the scope of the treaties, and procedurally, by restricting their usefulness in court proceedings.753

The principal means by which the United States sought to limit the domestic impact of signing the ICCPR and the CAT was by declaring both treaties to be “non-self-executing.” That is, without enabling legislation they cannot be relied upon to enforce rights in U.S. Courts, and no such legislation has ever been enacted. The United States asserts that existing state and federal laws adequately protect against violations of the treaty. Yet despite many congruencies with the U.S. Constitution, the ICCPR and the Convention against Torture offer additional rights and protections for individuals than has been found under the U.S. Constitution. By declaring the treaties non-self-executing, the United States has left without judicial recourse individuals whose rights under the treaties are being violated.

Under the U.S. Constitution, international treaties are part of the supreme law of the land.754 Regardless of whether a treaty is self-executing, the president or executive branch remains obligated to ensure they are executed faithfully. At a minimum, the U.S. Government should prevent and remedy violations of the internationally recognized human rights of prisoners; should revise existing federal laws to facilitate compliance with treaty obligations; should encourage state correctional authorities to comply with the treaties and should monitor that compliance, and should use all federal powers — including litigation — to make sure prison authorities comply. Although the fifty states are not themselves parties to the treaties, they are obliged to obey federal law, which includes international treaties ratified by the U.S. Senate.

The United States also sought to limit the domestic impact of the ICCPR and Conventional against Torture by limiting the scope of the substantive rights they acknowledged. For example, in its reservation to Article 7 of the ICCPR prohibiting torture or cruel, inhuman or degrading treatment, the United States stated that it “considers itself bound by Article 7 to the extent that ‘cruel, inhuman or degrading treatment or punishment’ means the cruel and unusual treatment or punishment prohibited by the Fifth, Eighth, and/or Fourteenth Amendments to the Constitution of the United States.”755 The United States has acknowledged that the extent of those constitutional provisions “is arguably narrower in some respects” than the scope of article 7.756 For example, as discussed below, the mistreatment of prisoners through substandard medical care will not be a violation of the Eighth Amendment unless prison officials acted with deliberate indifference. Article 7 of the ICCPR does not contain this stringent intent requirement. Prolonged solitary confinement with limited or no human interaction and no opportunity for work, educational, or other activities may violate Article 7 and Article 10.757 But the Eighth amendment does not give prisoners the right to recreational, vocational, or rehabilitative programs and except with regard to mentally ill prisoners, most U.S. Courts have upheld the constitutionality of segregated prison housing in which prisoners are kept, locked up around the clock in small isolated cells, for years at a time.758

In 1995, the U.N. Human Rights Committee, which is charged with monitoring the implementation of the ICCPR, found the U.S. Reservation to Article 7 of that instrument to be incompatible with the treaty’s object and purpose.759 Human Rights Watch agrees with this analysis, finding that the U.S. Attempt to narrow the treaty’s coverage is incompatible with its goal of preventing a wide range of human rights abuses. We therefore hold the United States to the full scope of the prohibition on torture and other ill treatment contained in the ICCPR and the Convention against Torture.

Constitutional Protections for Prisoners with Mental Illness Unlike the ICCPR, the U.S. Constitution does not expressly require federal and state governments to respect the basic dignity of all prisoners nor does it have any provisions that expressly refer to their treatment. The principal constitutional protection for prisoners is the Eighth Amendment’s prohibition of “cruel and unusual punishments.” It is well acknowledged within U.S. Constitutional jurisprudence that the Eighth Amendment requires prison officials to provide prisoners with such basic human needs as adequate food and water, shelter, clothing, sanitation, personal safety, and medical care, including mental health treatment. The courts have acknowledged that when people are incarcerated by the state and as a consequence unable to care for themselves, the U.S. Constitution imposes a duty on the state to assume responsibility for their safety and general well being. “[H]aving stripped [prisoners] of virtually every means of self-protection and foreclosed their access to outside aid,” society may not look away and let “the state of nature takes its course.”760

Yet, despite these constitutional guarantees, endemic problems remain. Prisoners are not a politically powerful constituency; prisoners with mental illness even less so. Governors and state legislatures are reluctant to make the financial commitments needed to ensure prisons are humane and that they provide appropriate mental health services. Correctional authorities may lack the commitment, energy, tenacity, and creativity to change long-established ways of doing business. As a result, it has taken litigation — and the threat of litigation — raising constitutional challenges to generate most of the improvements in U.S. Prisons over the past three decades.

The U.S. Department of Justice is authorized by statute to bring criminal charges or civil suits against state authorities for violating prisoners’ rights under the U.S. Constitution. It has instituted investigations under the Civil Rights of Institutionalized Persons Act into conditions in a number of jails and prisons that resulted, in findings, among other problems, that mental health services were inadequate, and has secured agreements with the responsible agencies to make improvements.761 Prisoners, however, have brought most of the suits initiated to reform prison practices and to redress prison abuses. This is also true with regards to cases addressing the treatment of prisoners with serious mental illness. Beginning in the 1970s, and continuing to the present day, prisoners have brought a series of court cases challenging the constitutional adequacy of the care of and mental health services for prisoners with mental illness. Representing mentally ill prisoners, the National Prison Project of the American Civil Liberties Union has, for example, litigated at least sixty-five cases over the past two decades. State and local public legal services organizations have brought many others, in addition to countless suits brought by prisoners representing themselves.

Court rulings or consent decrees have established important benchmarks for the treatment of mentally ill prisoners and mandated major revisions in the ways correctional authorities provided mental health services.762 Discovery in those cases, as well as court orders, have revealed publicly the appalling conditions under which thousands of mentally ill prisoners have been confined.

Litigation has also enabled prison officials to undertake reforms that politics and lack of resources prevented them from doing. Human Rights Watch interviewed a number of correctional mental health officials who acknowledged that litigation was often the only way they could obtain the financial resources as well as support from elected officials to do what they knew needed to be done. As the mental health director at the Vermont Department of Corrections told us:

While lawsuits are stressful and time-consuming and, by definition, contentious, they do often expose systems’ deficiencies and serve as a spotlight on these areas for a broader audience. This audience would include legislators, high-level managers, the judiciary and executive staff who might be in a position to consider resource allocation needs accordingly.763

Similarly, the superintendent of the Washington Correctional Center for Women told us that: “Sometimes lawsuits are useful. It’s our aim not to have them. But a part of what got us the resources we have now is Hallett v. Payne [class action lawsuit challenging treatment of women prisoners]. We got resources as a result to do it better.”764

The Right to Mental Health Treatment
In the landmark case of Estelle v. Gamble, the U.S. Supreme Court enunciated the legal standard for evaluating medical claims under the Eighth Amendment. Medical care, or the lack there of, is unconstitutional when it involves the “unnecessary and wanton infliction of pain”765 and because of correctional officials’ “deliberate indifference to serious medical needs of prisoners.”766 This standard has been extended to the treatment of mental illness. An prisoner is:

entitled to psychological or psychiatric treatment if a physician or other health care provider, exercising skill and care at the time of observation, concludes with reasonable medical certainty (1) that the prisoner’s symptoms evidence a serious disease or injury; (2) that such disease or injury is curable or may be substantially alleviated; and (3) that the potential for harm to the prisoner by reason of delay or the denial of care would be substantial.767

Substandard quality of care, negligence, or even malpractice does not suffice to establish a constitutional violation.768 To prove an Eighth Amendment violation, prisoners must show both an objective and serious injury, either physical or psychological, and a culpable subjective intent on the part of the prison authorities. The culpable mental state that must be proven is that of “deliberate indifference,” meaning that the defendant actually knew of and yet disregarded an excessive risk to prisoner health. Accidental or inadvertent failure to provide adequate care does not suffice. In Farmer v. Brennan, the Supreme Court ruled that officials could not be found to be deliberately indifferent based on what they should have known, as opposed to what they actually knew.769 It stated that:

prison official[s] may be held liable under the Eighth Amendment for denying humane conditions of confinement only if he knows that inmates face a substantial risk of serious harm and disregards that risk by failing to take reasonable measures to abate it.770

That is, the officials must have “consciously disregard[ed] a substantial risk of serious harm” to the prisoners.771

The requirement of proof of “deliberate indifference” has significantly limited court findings of constitutional violations with regard to mental health services and thus, of course, their ability to order improvements in those services. For example, according to a federal court, plaintiffs’ experts in a long-running class action lawsuit against the Texas Department of Criminal Justice (TDCJ) found system-wide deficiencies in the mental health care system, including “not recognizing or minimizing symptoms indicative of major mental illnesses;” underdiagnosis of mental illnesses, inadequate access to psychiatric assessments, and inadequate treatment of those found to be mentally ill; and “wholly inadequate” staffing.772 However, while the court concluded that the psychiatric care system of TDCJ was “grossly wanting” it was unable to find constitutional violations because of absence of proof that TDCJ officials were “systemically and deliberately indifferent” to prisoners’ psychiatric needs.773 The court stated that it hoped the U.S. Supreme Court would eventually modify its contemporary standards for cruel and unusual punishment regarding medical treatment for prison prisoners. “As the law stands today, the standards permit inhumane treatment of inmates. In this court’s opinion, inhumane treatment should be found to be unconstitutional treatment.”774

There is no clear definition of, or consensus about, what constitutes a sufficiently serious mental health condition to implicate the Eighth Amendment. Reviewing the case law, one of the country’s leading experts on legal issues concerning prisoners with mental disorders concluded:

[T]here is not one clear definition or predictive certainty as to what is or is not a serious mental disorder. [But] schizophrenia, bipolar disorders, and clinically significant depression that causes relative inability to function will all clearly qualify as serious.775

In the context of a class action lawsuit in Wisconsin — Jones ‘El v. Berge —challenging the placement of prisoners with serious mental illnesses in high-security isolated confinement, a federal judge recently approved a definition of “seriously mentally ill inmates” as those who have been:

Diagnosed with specific conditions such as schizophrenia, delusional disorder, schizophreniform disorder, schizoaffective disorder, brief psychotic disorder, substance-induced psychotic disorder, other psychotic disorders not otherwise specified, major depressive disorders, bipolar disorder I and II.

Diagnosed with a mental disorder that includes being actively suicidal.

Diagnosed with an organic brain syndrome that will significantly impair functioning if not treated.

Diagnosed with a severe personality disorder that results in significant functional impairment.

Diagnosed with any other serious mental illness that would be worsened by confinement at Supermax.776

Constitutionally Required Components of Mental Health Services The basic components of what is needed for correctional mental health services to pass constitutional muster were outlined in the landmark case of Ruiz v. Estelle. Filed in 1972, what became the longest prison-related lawsuit in U.S. History challenged the overcrowding, violence, arbitrary punishments, and grossly inadequate medical care in Texas’ sprawling prison system. In his landmark 1980 ruling, Judge William Wayne Justice, chief judge of the U.S. District Court for the Eastern District of Texas, described an unconstitutional mental health services system in which “treatment” consisted almost exclusively of the administration of dangerous medications, prisoners with mental disorders were ignored until their conditions became extremely serious, and acutely ill prisoners were warehoused in an overcrowded special treatment facility with few mental health professionals.777 He ruled that prison mental health services must include the following:

First, there must be a systematic program for screening and evaluating inmates in order to identify those who require mental health treatment… Second…treatment must entail more than segregation and close supervision of the inmate patients…. Third, treatment requires the participation of trained mental health professionals, who must be employed in sufficient numbers to identify and treat in an individualized manner those treatable inmates suffering from serious mental disorders…. Fourth, accurate, complete, and confidential records of the mental health treatment process must be maintained. Fifth, prescription and administration of behavior-altering medications in dangerous amounts, by dangerous methods, or without appropriate supervision and periodic evaluations, is an unacceptable method of treatment. Sixth, a basic program for the identification, treatment, and supervision of inmates with suicidal tendencies is a necessary component of any mental health treatment program.778

These six components continue to form the basic outline by which courts assess whether mental health services are adequate. At least two additional components have emerged in the case law. The first is access—the process by which prisoners get to mental health services—and the second is physical resources—whether adequate facilities and equipment are available to meet prisoners’ treatment needs.779

Americans With Disabilities Act
In recent years, the Americans with Disabilities Act of 1990 has opened up a new avenue for legal challenges to the failure to provide proper treatment for incarcerated persons with mental illness.780 The act bans discrimination against the disabled, a category that includes persons disabled by mental illness. In 1996, a class action was brought on behalf of prisoners with mental illness in New Jersey alleging that inadequate mental health services in the state’s prisons constituted both unconstitutional cruel and unusual punishment and also a violation of the Americans with Disabilities Act. The case was settled in 1999.781 That same year, attorneys in Illinois filed suit against the Supermax prison at Tamms, also alleging violations of the Americans with Disabilities Act as well as unconstitutionally cruel and unusual punishment.782 In May 2002, Disability Advocates Inc., filed a class action lawsuit against the New York State Department of Correctional Services and the New York State Office of Mental Health. One of the allegations in the lawsuit, which has not yet been decided, was that the state violated the Americans with Disabilities Act by housing mentally ill prisoners in Special Housing Units — disciplinary facilities in which the prisoners are kept in their cells twenty four hours a day except for brief periods of exercise a few times a week and in which they have little or no access to meaningful activities and little mental health treatment.783 Plaintiffs claim the state prison system should “provide alternative punishments as a reasonable accommodation [to the disability of mental illness] so that punishments which exacerbate mental illnesses are not imposed.”784

Prison Litigation Reform Act
In 1996, federal legislation was enacted that has severely curtailed the ability of prisoners to seek judicial relief for violations of their constitutional rights. Supporters of the Prison Litigation Reform Act (PLRA) insisted it was necessary to curtail frivolous prisoner lawsuits. But its impact — and perhaps its real underlying intent — has been much broader. Prisoners with legitimate and serious complaints are far less likely to be able to have their day in court than they did prior to enactment of the law. A comprehensive set of constraints on prison litigation, the PLRA requires prisoners to exhaust their administrative remedies before they can file a lawsuit. This means they must satisfy all the requirements of prison grievance processes — filing grievances in a correct and timely manner, pursuing their administrative appeals also in a correct and timely manner (the deadlines are typically quite short) — no matter how futile the process may be (prisons rarely recognize the merit of prisoner grievances), no matter how meritorious their claims or how legitimate their reasons for failing to follow the administrative process to the letter. The exhaustion requirement applies even if the remedy being sought is not available through the grievance system and even if a prisoner faces an immediate threat to health or safety. The exhaustion requirement is particularly onerous in class action cases, in which all the named plaintiffs must have complied with their prison internal grievance procedures.

The PLRA also: 1) invalidates all settlements that do not include explicit findings that the challenged conditions violate federal law or the constitution, thereby discouraging amicable negotiated settlements, 2) requires that prospective relief in prison conditions suits, such as consent decrees, be “narrowly drawn,” 3) arbitrarily terminates court orders against unlawful prison conditions after two years, regardless of the prison authorities’ degree of compliance with the orders, and 4) restricts the grant of attorneys’ fees for successful prison conditions suits, severely reducing the financial viability of even the most sorely-needed prison reform efforts. Other objectionable provisions of the act limit prisoners’ access to the courts by imposing court filing fees on certain indigent prisoners and bar the recovery of damages for pain and suffering not accompanied by physical injury. In short, without explicitly cutting back on prisoners’ constitutionally protected rights, the PLRA has created formidable obstacles to judicial protection and enforcement of those rights.

21 Information contained in chart produced by the Health Care Services Division of the California Department of Corrections titled: “Combined Mental Health Population Per Institution.” The figures were last updated July 25, 2002. According to the Monthly Report of Population for July 2002, the total California Department of Corrections population was 157,514. State of California, Department of Corrections, Data Analysis Unit, “Monthly Report of Population,” July 31, 2002, accessed from, on June 18, 2003.

Research Brief, Occasional Paper Series, no. 1 (New York: The Open Society Institute, November 1996), accessed online at:, on June 10, 2003.

In the nigh on to nine years that have elapsed since the publication of Palmigiano there has been an endless stream of motions and hearings; virtually all have concerned the state’s failure to comply with the 1977 Order. The repetitive lament offered by the state was its inability to accomplish the ordered changes within the established time frames. And with patient confidence the Court bowed, with the same leitmotiv, continuing the matter to another day.

Palmigiano, 639 F. Supp. At 246.

no evidence that any of the aspects of hospital-level care…are provided…. There is no assessment (admission or otherwise) by a multidisciplinary team, and no multidisciplinary treatment plan which defines the inmate’s problems, the planned interventions, the staff responsible, or the goals to be achieved. Treatment consists of brief, non-confidential interactions with the psychologist, irregular participation in limited group sessions, and infrequent psychiatric interaction. The primary mode of treatment is medication – for which consent is neither sought nor granted. Inmates are very often prescribed long-acting injectable antipsychotic medications [which are] contraindicated for management of acute psychiatric illness due to their long duration of action.

Kilby lacks twenty-four hour, seven-day-a-week psychiatric nursing, “a benchmark for hospital care.” After discussing many other problems at Kilby, the experts conclude, that the “end result is that the ADOC effectively denies access to inpatient treatment for inmates with acute and serious mental illness…the ‘treatment provided on the Kilby MHU consists of little more than seclusion, increased correctional supervision, and coerced psychotropic medication.” Ibid., pp. 73-77.

type of what goes by the name “treatment” or “treatment unit” is seriously deficient in some critical aspect. Rounds that are designed to assess inmates and provide inmates with access are rapid “drive-throughs.” Brief encounters at the cell or in a “pill line” are termed “psychotherapy.” Inmates with serious mental illness are locked-down under primitive conditions, and, if thought suicidal, are stripped and made to sleep on the floor on a thin plastic mat. Medications are distributed in an unprofessional and dangerous fashion…the ‘treatment plans’ that exist do not meet the most basic requirements for such plans….

Ibid., p. 88

Thinly staffed, overcrowded, and impoverished facilities breed tension and violence, particularly where prison management has not placed a high priority on promoting staff-inmate and inmate-inmate relations predicated on mutual respect. Many corrections authorities have turned to prolonged supermax confinement in an effort to increase their control over prisoners. They believe that if they can confine all the most dangerous or disruptive inmates in facilities designed specifically for that purpose, they will be able to increase safety and security in other prisons…. A significant impetus for supermax confinement also comes from politicians. Crime and punishment have been central issues in American politics for over two decades, and advocating harsh punitive policies for criminal offenders remains a politically popular position. Elected officials advancing tough-on-crime policies have promoted large supermax prisons for their symbolic message, regardless of actual need. Fearful of being accused of ‘coddling inmates’ or being ‘soft on crime,’ few politicians have been willing to publicly challenge supermaxes on human rights grounds.

725 The role of federal courts in protecting prisoners from mistreatment, and the difficulties inmates face in bringing litigation to vindicate their rights, including the impact of the Prison Litigation Reform Act, are discussed in Human Rights Watch, No Escape: Male Rape in U.S. Prisons (New York: Human Rights Watch, 2001).

726 Human Rights Watch telephone interview with Dr. Reginald Wilkinson, director, Ohio Department of Rehabilitation and Correction, July 3, 2003.

727 International Covenant on Civil and Political Rights, G.A. Res. 2200A (XXI), 21 U.N. GAOR Supp. (no. 16) at 52, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171, entered into force Mar. 23, 1976.

728 International Covenant on Economic, Social and Cultural Rights, G.A. Res. 2200A (XXI), 21 U.N.GAOR Supp. (no. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976.

729 Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 39/46 [annex, 39 U.N. GAOR Supp. (no. 51) at 197, U.N. Doc. A/39/51 (1984)], entered into force June 26, 1987.

730 The Convention against Torture also prohibits torture and cruel, inhuman, or degrading treatment.

731 ICCPR, art. 10 (1). Paragraph 3 of article 10 also states the “essential aim” of prison systems is the “reformation and social rehabilitation” of prisoners. The United States, in ratifying the ICCPR, issued an understanding stating that art. 10(3) “does not diminish the goals of punishment, deterrence and incapacitation as additional legitimate purposes for a penitentiary system.” While violations of article 7 will also violate article 10, the reverse is not necessarily the case. The criteria by which the Human Rights Committee has concluded certain prisons conditions violated article 10(1) and not article 7 can be difficult to discern. See Nigel Rodley, The Treatment of Prisoners Under International Law (Oxford: Clarendon Press, 1999), pp. 286-292.

732 Standard Minimum Rules for the Treatment of Prisoners, adopted Aug. 30, 1955 by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, U.N. Doc. A/CONF/611, annex I, E.S.C. Res. 663C, 24 U.N. ESCOR Supp. (no. 1) at 11, U.N. Doc. E/3048 (1957), amended E.S.C. Res. 2076, 62 U.N. ESCOR Supp. (no. 1) at 35, U.N. Doc. E/5988 (1977).

733 Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, G.A. Res. 43/173, annex, 43 U.N. GAOR Supp. (no. 49) at 298, U.N. Doc. A/43/49 (1988).

734 Basic Principles for the Treatment of Prisoners, G.A. Res. 45/111, annex, 45 U.N. GAOR Supp. (no. 49A) at 200, U.N. Doc. A/45/49 (1990).

735 Basic Principles for the Treatment of Prisoners, Principle 9 which states: “Prisoners shall have access to the health services available in the country without discrimination on the grounds of their legal situation.” See also, European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT), The CPT Standards, regarding health care services in prisons. “…[P]risoners are entitled to the same level of medical care as persons living in the community at large. This principle is inherent in the fundamental rights of the individual.” Ibid., section IV, para. 31.

736 Basic Principles for the Treatment of Prisoners, Principle 24.

737 Standard Minimum Rules, paras. 58-59.

738 Standard Minimum Rules, para. 62.

739 Standard Minimum Rules, para. 82. The Committee for the Prevention of Torture, a body which monitors prisons of countries party to the European Convention of Human Rights also recognizes that inmates whose illness dictates the need for hospitalization should be transferred from prisons to mental health hospitals. According to the CPT, “a mentally ill prisoner should be kept in a hospital facility which is adequately equipped and possesses appropriately trained staff whether a civil mental hospital or a specially equipped psychiatric facility within the prison system.” CPT Standards, para. 43.

740 Standard Minimum Rules, Rule 22.

741 Standard Minimum Rules, Rule 49.

742 Principles of Medical Ethics relevant to the Role of Health Personnel, particularly Physicians, in the Protection of Prisoners and Detainees against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, G.A. Res. 37/194 (1982), Principle 1.

743 International Council of Prison Medical Services, The Oath of Athens, approved in 1979, quoted in Andrew Coyle, A Human Rights Approach to Prison Management: Handbook for Prison Staff (London: University of London. International Centre for Prison Studies, 2002), p. 56.

744 CPT Standards, Section VI, para. 37. This standard for psychiatric treatment applies to forensic as well as non-forensic mental health facilities.

745 Vienna Convention on Consular Relations, article 18, U.N.T.S. Nos. 8638-8640, vol. 596 (April 24, 1963), pp. 262-512.

746 Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health.

747 Committee on Economic, Social and Cultural Rights, General Comment 14: The Right to the Highest Attainable Standard of Health, para. 12.

748 See, e.g., Andrew Coyle, A Human Rights Approach to Prison Management: Handbook for Prison Staff (London: University of London. International Centre for Prison Studies, 2002). This excellent handbook translates internationally acknowledged human rights and standards relating to imprisonment into guidelines for good prison management.

749 Principles for the Protection of Persons with Mental Illnesses and the Improvement of Mental Health Care, G.A. Res. 46/119, 46 U.N. GAOR Supp. (No. 49) at 189, U.N. Doc. A/46/49 (1991). The MIPrinciples do not define “mental illness.” Principle 4(1) provides that “A determination that a person has a mental illness shall be made in accordance with internationally accepted medical standards.”

750 The Case of Victor Rosario Congo, Case No. 11,427, Inter-Am C.H.R. Report 29/99, Ecuador, adopted in Sess. 1424, OEA/Ser/L.V/II., doc. 26, March 9, 1999, para. 54.

751 The United Nations has appointed three Special Rapporteurs on Human Rights and Disability. See Eric Rosenthal and Clarence J. Sundram, The Role of International Human Rights in Domestic Mental Health Legislation, submitted to the World Health Organization on March 31, 2002, and available online at:, accessed on July 1, 2003. Rosenthal is executive director of Mental Disability Rights International.

752 MI Principles, Principle 20.

753 The U.S. Government attached three reservations, five understandings, and two declarations to its ratification of CAT. Five reservations, five understandings, and four declarations accompanied the ICCPR. The United States has not ratified the First Optional Protocol to the ICCPR and did not declare itself bound by article 22 of CAT. The First Optional Protocol and article 22 allow the committees responsible for monitoring compliance with the treaties to receive complaints from individuals and organizations, in addition to complaints from other governments. The effect of the U.S. Positions, combined with inadequate enforcement at the state level of prohibitions on torture and cruel, inhuman, and degrading treatment, is to deny U.S. Citizens and others who allege violations of such treaties any forum in which their grievances can be heard or resolved.

754 The U.S. Constitution’s Supremacy Clause, art. VI, cl. 2, establishes that treaties are the law of the land in the United States. As such, treaties have the status of law in the U.S. Domestic legal system. The Supremacy Clause declares treaties to be the “supreme Law of the Land” and instructs the courts to give them effect. The Supreme Court has held that customary international law is also the law of the land to be enforced by U.S. Courts. See The Paquete Habana, 175 U.S. 677 (1900).

755 Committee Against Torture, “Status of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and Reservations, Declarations and Objections under the Convention,” U.N. Doc. CAT/C/2/Rev5. Available online at:,CAT%2Fc%2F2%2Frev.5, accessed June 30, 2003.

756 U.N. Human Rights Committee, State Party Report (Initial reports of States parties due in 1993), United States of America 24/08/94, U.N. Doc. CCPR/C/81/Add.4 (1994), para. 176.

757 Human Rights Watch, Cold Storage: Super-Maximum Security Confinement in Indiana (New York: Human Rights Watch, 1997); Human Rights Watch, “Out of Sight: Super-Maximum Security Confinement in the United States,” A Human Rights Watch Report, vol. 12, no. 1(G), February 2000; Nigel Rodley, The Treatment of Prisoners Under International Law (Oxford: Clarendon Press, 1999).

758 See discussion of administrative and disciplinary segregation below, chapter XII.

759 U.N. Human Rights Committee, Concluding Observations of the Human Rights Committee: United States of America, U.N. Doc. CCPR/C/79/Add 50 (1995). For further discussion of Human Rights Watch’s position on U.S. Reservations to these treaties, see Human Rights Watch, No Escape: Male Rape in U.S. Prisons (New York: Human Rights Watch, 2001), pp. 58-59; and Human Rights Watch, All Too Familiar: Sexual Abuse of Women in U.S. State Prisons (New York: Human Rights Watch, 1996), p. 47.

760 Farmer v. Brennan, 511 U.S. 825, 833 (1994) (internal citations omitted).

761 The U.S. Department of Justice may criminally prosecute officials for violating a prisoner’s constitutional rights under sections 241 and 242 of Title 18 of the United States Code. It may also institute civil suits for violations of the civil rights of prisoners under the Civil Rights of Institutionalized Persons Act, 42 U.S.C. Section 1997 et seq. The investigative findings and settlements with Los Angeles County (regarding L.A. County Jail) and with the State of Wyoming (regarding Wyoming state prisons) are available online at:, accessed June 9, 2003.

762 See Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998); see also the 2000-2001 Supplement to the same volume for a review and analysis of these cases.

763 Human Rights Watch telephone interview with Tom Powell, director of mental health, Vermont Department of Corrections, April 23, 2003.

764 Human Rights Watch interview with Belinda Stewart, superintendent, Washington Correctional Center for Women, Tacoma, Washington, August 21, 2002.

765 Gregg v. Georgia, 428 U.S. 153, 173 (1976), quoted in Estelle v. Gamble, 429 U.S. 97, 104 (1976).

766 Estelle, 429 U.S. At 104.

767 Bowring v. Godwin, 551 F.2d 44, 47 (4th Cir., 1977).

768 Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998) provides a comprehensive and periodically updated analysis of legal developments, including how courts have interpreted “deliberate indifference.” Another useful source is the bimonthly Correctional Mental Health Report, also published by the Civic Research Institute and edited by Cohen, available online at:, accessed July 1, 2003.

769 Farmer v. Brennan, 511 U.S. 825 (1994).

770 511 U.S. At 832.

771 511 U.S. At 839.

772 Ruiz v. Johnson, 37 F. Supp. 2D 855 (S.D. Texas, 1999), 902-907

773 Ruiz, 37 F. Supp. 2d. At 907.

774 Ibid.

775 Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998), p. 4-33. The Mentally Disordered Inmate, which is periodically updated, provides a comprehensive review of legal developments.

776 The settlement agreement provides that “No seriously mentally ill prisoners will be sent to [the supermax] nor will seriously mentally ill prisoners at the facility be permitted to remain there.” The department of corrections sought to have serious mental illness be defined the same as the test for incompetence to stand trial. The court rejected this narrow definition and accepted the definition put forward by Dr. Terry Kupers, a psychiatric expert for the plaintiffs. The court ordered that inmates suffer from a serious mental illness are those who have current symptoms of or are receiving treatment for Axis I disorders; inmates diagnosed with a mental disorder that includes being actively suicidal; with a serious mental illness that is frequently characterized either by breaks with reality or by perceptions of reality that lead the individual to significant functional impairment; with an organic brain syndrome that results in a significant functional impairment if not treated; with a severe personality disorder that is manifested by frequent episodes of psychosis or depression and results in significant functional impairment; or with any other serious mental illness or disorder that is worsened by confinement at Supermax. Included in the settlement agreement between the parties approved by the court were the court’s definition of serious mental illness and the court ordered procedures for implementing the definition. As of June 2003, there was only one inmate who the DRC claimed should be held at the facility under this “dangerousness” exception. Jones ‘El v. Berge, Judgment in a Civil Case, Case No. 00-C-0421-C (W.D. Wisconsin, June 24, 2002) (unpublished). Human Rights Watch telephone interview with David Fathi, attorney with the ACLU’s National Prison Project, June 30, 2003.

777 Ruiz v. Estelle, 503 F. Supp. 1265, 1336 (S.D. Tex. 1980), aff’d in part, 679 F.2d 115 (5th Cir. 1982), cert. Denied, 460 U.S. 1042 (1983).

778 503 F. Supp. At 1339. In 1999, in response to an effort by Texas to obtain termination of the court’s jurisdiction over the Texas prison system, Judge Justice found that Texas continued to violate inmate constitutional rights because of “inadequate and negligen[t] medical and psychiatric treatment.”

779 Fred Cohen, The Mentally Disordered Inmate and the Law (New Jersey: Civic Research Institute, 1998), p. 7-7. Cohen spells out a larger list of sixteen factors that he concluded are required for a legal and sound system of mental health services.

780 42 U.S.C. 12101 et. Seq.

781 D.M. Et al v. Jack Terhune et al. 67 F. Supp. 2D 401 (D. N.J., 1999).

782 Plaintiffs were not, however, able to get class certification for the case. Rasho v. Snyder, 2003 U.S. Dist. Lexis 2833, Feb. 28, 2003 (Denial of Plaintiffs’ Motion for Reconsideration of Order Denying Class Certification).

783 As noted below in chapter XII, the terminology for punitive, segregated prison units varies among the different prison systems.

784 Disability Advocates Inc. v. New York State Office of Mental Health. No. 02 CV 4002. (S.D.N.Y., May 28, 2002).

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